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If the police pull you over, it is your constitutional right to refuse to answer questions from the police, but does it violate the Constitution if they retaliate against you to punish you for refusing to answer their questions? That is the question at the center of case that went before the U.S. Court of Appeals for the 5th Circuit, Alexander v. City of Round Rock.

Orin Kerr, the Fred C. Stevenson Research Professor at The George Washington University Law School, took a look at the 5th Circuits decision for the Washington Post, and he writes that the court ruled while retaliation against a person for refusing to answer police questions may violate the Fourth Amendment, it does not clearly violate the First Amendment, and it does not violate the Fifth Amendment.

Kerr believes the courts ruling on the Fifth Amendment is missing some key complications, and he wrote about why its a tricky issue.

According to the facts presented in the case, Lionel Alexander was pulled over by police and declined to answer their questions. In response to that, police retaliated by ordering him out of his car and then pinning him face down onto the ground. Other officers joined in, and one officer pressed a a boot or knee on the back of Alexanders neck as his face was pressed into the concrete.

Alexander was then handcuffed, and an officer asked, Are you ready to talk to me now? to which Alexander responded with an expletive. Police then shackled his legs, and at that point he was arrested. According to the police report, Alexander was arrested for obstructing a police officer.

From the Post:

Alexander filed a civil suit against the officers and the municipality (collectively, the officers). The district court rejected the civil suit, and the 5th Circuit reversed in part and affirmed in part, in an opinion by Judge Edith Brown Clement joined by Judge Jerry Smith and Judge Leslie Southwick.

The 5th Circuits new decision makes several rulings against the officers in the case. It rules that Alexander has stated a Fourth Amendment claim for unlawful detention and arrest; that qualified immunity should not apply to those claims; and that Alexander has stated a claim for excessive force.

Alexanders suit claimed that the officers retaliated against him for refusing to speak to them, and said retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit disagreed and ruled that any retaliation could not violate his Fifth Amendment right and any First Amendment claim was barred by qualified immunity.

Kerr says that the U.S. Supreme Court has interpreted the Fifth Amendment right against self-incrimination in three different ways to do three different things that are all justified by the same constitutional text that no person shall be compelled in any criminal case to be a witness against himself.

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The first is a right a person can assert not to be compelled by threat of legal punishment to say something that would expose them to criminal liability. The second is a right not to have forced confessions admitted in a criminal proceeding. The third is a right to get warnings in custody and to be able to call off interrogations. Theyre all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But theyre three distinct rights with three distinct histories.

Kerr disagrees with the 5th Circuits ruling on the Fifth Amendment in Alexanders case because it says the Fifth Amendment applies only in custodial interrogation which applies to the third definition of the amendment, or the Miranda right. Because Alexanders case doesnt include a Miranda claim, Kerr says that cant be a strong basis for the courts ruling.

Kerr comes to the conclusion that perhaps the idea that you have a right to remain silent is inaccurate, and that there are difficult issues lurking in the courts Fifth Amendment ruling that didnt come out in the short passage in the opinion.

This is an interesting case to look at, and Kerrs analysis goes into greater detail than I can put into this post, so its worth giving a read.

This ruling is especially timely at a time when our countrys attorney general is looking to police more power while simultaneously stripping protections from everyday citizens.

Understand what you can and cannot do during a police stop is likely to become much more important as this administration rolls on.

Read more at the Washington Post.

Continued here:
You Have the Right to Remain Silent, But Can the Police Retaliate Against You For It? - The Root

This is the third and final installment in our series on the Constitution at the border. Today, well focus on the Fifth Amendment and passwords. Click here for Part 1 on the First Amendment or Part 2 on the Fourth Amendment.

Lately, a big question on everyone's mind has been: Do I have to give my password to customs agents?

As anyone whos ever watched any cop show knows, the Fifth Amendment gives you the right to remain silent and to refuse to provide evidence against yourself even at the border. If a CBP agent asks you a question, you can tell them you choose to remain silent and want to speak to an attorney, even if you dont have one retained yet. That choice may not stop CBP agents from pressuring you to voluntarily talk to them, but they are supposed to stop questioning you once you ask for a lawyer. Also, beware that government agents are permitted to lie to you in order to convince you to waive your right to remain silent, but you can be criminally prosecuted if you lie to them.

CBP agents are unlikely to advise you that you have this choice because the government generally argues that such warnings are only required if you are taken into custody and subjected to a criminal prosecution. And at least one federal court of appeals has determined that secondary inspection the separate interview area you get referred to if the CBP officer cant readily verify your information at the initial port of entry doesnt qualify as custody.

But you dont have to be in custody or subject to a criminal prosecution before you choose to invoke your Fifth Amendment rights to remain silent or to object to being deprived of your property without due process of law. For example, the Second Circuit Court of Appeals has held that a persons request for an attorney is enough to invoke the privilege against self-incrimination, even at the border.

And that privilege includes refusing to provide the password to your device. For example, in 2015, a Pennsylvania court held that you may properly invoke the Fifth Amendment privilege to avoid giving up your cell phone passcode even to an employers phone because your passcode is personal in nature and producing it requires you to speak or testify against yourself.

Some courts have been less protective, overriding Fifth Amendment protections where the information sought is a so-called foregone conclusion. In 2012, a Colorado court ordered a defendant to provide the password to her laptop, only after the government had obtained a search warrant based on the defendants admission that there was specific content on her laptop and that the laptop belonged to her. On appeal, the Eleventh Circuit clarified that the government "must [first] show with some reasonable particularity that it seeks a certain file and is aware, based on other information, that . . . the file exists in some specified location" and that the individual has access to the desired file or is capable of decrypting it.

So, Fifth Amendment protections do apply at the border, and they protect your right to refuse to reveal your password in most circumstances. That said, individuals passing through the border sometimes choose to surrender their account information and passwords anyway, in order to avoid consequences like missing their flight, being made subject to more constrictive or prolonged detention, or being denied entry to the US.

As we have noted in our Digital Border Search Whitepaper, the consequences for refusing to provide your password(s) are different for different classes of individuals. If you are a U.S. citizen, CBP cannot detain you indefinitely as you have a right to re-enter the country. However, agents may escalate the encounter (for example, by detaining you for more time), or flag you for heightened screening during future border crossings. If you are a lawful permanent resident, agents may also raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents might deny you entry to the country entirely.

But whatever your status, whether you choose to provide your passwords or not, border agents may decide to seize your digital devices. While CBP guidelines set a five-day deadline for agents to return detained devices unless a CBP supervisor approves a lengthier detention, in practice, device detentions commonly last many months.

As always, we want to hear from you if you experience harm or harassment from CBP for choosing to protect your digital data. Were still collecting stories of border search abuses at: borders@eff.org

We recommend that you review our pocket guides for Knowing Your Rights and Protecting Your Digital Data Privacy at the border for a general overview or take a look at our Border Search Whitepaper for a deeper dive into the potential issues and questions you may face.

And join EFF in calling for stronger Constitutional protection for your digital information by contacting Congress on this issue today.

Go here to see the original:
The Bill of Rights at the Border: Fifth Amendment Protections for ... - EFF

Birds > private property rights in some courts.

Yesterday, we learned the Florida Supreme Court denied review of ourGanson v. City of Marathonregulatory takings case. Weve previously written about the case here, here,here, and here. In a nutshell, government officials in the City of Marathon, along with officials in Monroe County and the State of Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop on the nine acres an island known as Bamboo Key because itmade a fine bird rookery. And when those officials made that decision, they further decided they did not have to pay the Beyers for the taking despite having rendered Bamboo Key virtually uninhabitable. I say virtually because the officials in their perverse form of benevolent despotism graciously allowed that the Beyers could use the island for temporary camping.

I kid you not.

Unsurprisingly, Pacific Legal Foundation believes that this amounts to a total taking of the Beyers property. We will now seek review of the case at the Supreme Court of the United States. The last time we took an adverse Florida Supreme Court decision to the nations High Court, we won a crucial victory for property rights on behalf of Coy Koontz and the Fifth Amendment rights of all Americans. We intend to win another case for all Americans this time, as well.

Go here to read the rest:
Florida Supreme Court rules for birds, against Fifth Amendment ... - Pacific Legal Foundation (PLF) (press release) (blog)

Enlarge / John Krafcik, CEO of Waymo, debuts a customized Chrysler Pacifica Hybrid in January 2017.

Bill Pugliano / Getty Images News

"What Ive told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating," US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing."Im not ruling against theultimate assertion of the privilege, but youve got to do more than just say in court, Fifth Amendmentyou have to do a privilege log and go through the process."

The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division.

Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealingthousands of secret documents from his time with Waymoparent company Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoenabut allowed the most substantive, the allegedly "misappropriated materials," to stand. (The third item, "All communications between You and Uber between January 2015 and August 2016," will also remain.)

Earlier this year, Waymo sued Uber for alleged patent infringementWaymo claimed that Levandowski, a former Waymo and Google employee, stole 14,000 confidential documents prior to his departure.Armed with that data, Waymo further alleged, Levandowski founded a company called Otto in early 2016, which was then acquired by Uber for $680 million only months later. Waymo argued that this cache of materials allowed Uber to rapidly and seriously compete with Waymo in self-driving technology. Late last month, Waymo lawyers asked the judge to impose an injunction that would compel Uber to stop using any of the allegedly stolen data.

In late March 2017, Levandowski invoked his Fifth Amendment right to protect against self-incriminationdespite the fact that he neither has been charged with a crime, nor is he a named defendant in the civil suit. So far, the engineer has refused to hand over any documents or data related to the lawsuit. In addition, Uber seems unable to compel Levandowski, who still remains employed at Uber, to give up the information.

"As an employer you cannot force an employee to turn over personal property," Arturo Gonzlez, one of Ubers attorneys, told Ars in a phone interview after the Wednesday hearing. However, he noted, Uber would be "very pleased" if Levandowski would hand over any relevant data that he may have.

During that late March court hearing, when Uber indicated it would not pursue any data that Levandowski held privately, Waymo tried a different tactic. It served Levandowski'sattorneys with a subpoena, commanding Levandowski to produce substantial amounts of materials and to appear for a deposition on Friday, April 14. Levandowski'sown lawyer, Ismail Ramsey, told Waymo's lawyers in a letter on Monday that Levandowski "plans to assert his Fifth Amendment rights with respect to any documents requests served on him."

Waymo's attorneys, for their part, countered in a Tuesday letter to the judge: "Again, the only reason a subpoena was even required to be served in the first place is because Uber and Mr. Levandowski have attempted to construct an artificial distinction between themselves in an effort to delay their obligations to produce responsive information."

As Ars reported earlier this month, Uber's lawyers initially resisted producing a privilege log of their own. Uber's loga list of which documents shouldn't be disclosed to Waymo as part of civil discoveryishundreds of pages long, much of it e-mail from Uber's systems about the $680 million acquisition of Levandowski's startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won't even say who the report's author is.

Four days after that April 6 hearing, on April 10, Judge Alsupdenied Levandowskis lawyers attempt tohalt Uber from giving up its privilege log.

"At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege," Judge Alsup wrote. "That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed."

Levandowskis lawyers immediately appealed Alsups April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit, which handles all patentappeals.

"I dont believe that you need until Wednesday at noon," the judge said.

On Wednesday, the judge also ordered that by April 25, Uber must produce a description of any and all LIDAR-related work performed by Levandowski, who still currently oversees Ubers self-driving car program.

"You are ignoring all of the other work and you never mentioned what Mr. Levandowski was doing," Judge Alsup told Uber lawyers during the Wednesday hearing. "What was he working on? It does leavethe impression that you have cleverly written around the problem of what Levandowski was working on even if it didnt turn into a prototype. Thats a fair question, and they are entitled to an answer."

Judge Alsup also noted that if Levandowski was going to continue to invoke his constitutional rights during the Friday deposition, the engineer couldnt do it in one fell swoop."It has to be invoked question by questionitll be a long day but you have to go through the process," he said, addressing Waymo attorneys.

Both sides will reconvene before Judge Alsup on May 3 to discuss Waymos motion for a preliminary injunction, which could put the brakes on Ubers self-driving work.

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Uber engineer accused of data theft must tell judge why he's ... - Ars Technica

The presiding judge in Alphabets lawsuit against Uber for allegedly stealing autonomous-car trade secrets has said that Uber must disclose certain basic details of a due diligence report conducted as part of Ubers August 2016 acquisition of self-driving tech startup Otto.

The report could play an important role in Alphabets allegations that the ride-hail company is using Alphabets proprietary self-driving technology.

The Google parent company claims that Ubers self-driving head, Anthony Levandowski, stole 14,000 files from Alphabet that included designs for its lidar Light Detection and Ranging technology. Lidar is key to most self-driving systems.

Uber counters that its technology is unique and distinct from that used in Alphabets self-driving efforts, which exist under the umbrella of an Alphabet subsidiary, Waymo.

A due diligence report is conducted by a third party as part of an acquisition. It looks at finances, legal issues and other details of a company that is being acquired.

Alphabet has claimed that the due diligence report will prove that Levandowski who worked on self-driving technology for Alphabet before leaving and co-founding self-driving trucking company Otto stole the files. Theres a question of whether the report included a review of any of the allegedly stolen documents. And if Alphabet knew who compiled the report, the company could subpoena them.

Last week, Levandowski filed a motion requesting that details of the due diligence report including the identity of the party that conducted the report not be disclosed in Alphabets suit.

Levandowski is not named as a party in the lawsuit, and is retaining his own attorneys, who filed the motion on his behalf. Uber did not sign on to the motion.

Judge William Alsup ordered that the report be included in the privilege log a list of documents that a party in a lawsuit argues should not be opened up to the court because they contain privileged information that Uber must compile. The judge is not at this time requiring that the report be opened up to the court, but is ordering it to be included in that list without basic details redacted.

There will be time enough to argue soon over whether the due diligence report itself must be produced, Alsups order said. But for now that report must be put on a privilege log in the conventional way without any of the redactions requested by counsel for Levandowski.

Levandowskis attorneys argued that revealing details of the report would violate his Fifth Amendment right against self-incrimination because the document details might furnish a link in a chain of possible incrimination.

At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege, Alsups order said. That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed.

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The judge in the Alphabet/Uber lawsuit rejects a Fifth Amendment ... - Recode